THE SALES TERMS AND CONDITIONS OF SALE CONTAINED HEREIN APPLY TO ALL QUOTATIONS MADE AND PURCHASE ORDERS ACCEPTED BY SHARP FOR THE PURCHASE AND SALE OF ELECTRONIC COMPONENTS PRODUCTS. SOME OF THE SALES TERMS AND CONDITIONS SET OUT HERE MAY DIFFER FROM THOSE IN CUSTOMER'S PURCHASE ORDER AND SOME MAY BE NEW. THIS ACCEPTANCE IS CONDITIONAL ON CUSTOMER'S ASSENT TO THE SALES TERMS SET OUT HERE IN LIEU OF THOSE IN CUSTOMER'S PURCHASE ORDER. SHARP'S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM CUSTOMER SHALL NOT BE SEEMED A WAIVER OF THE PROVISIONS OF THIS ACCEPTANCE. ANY CHANGES IN THE SALES TERMS CONTAINED HEREIN MUST SPECIFICALLY BE AGREED TO IN WRITING BY AN AUTHORIZED OFFICIAL OF SHARP BEFORE BECOMING BINDING ON EITHER SHARP OR CUSTOMER. All orders must be approved and accepted by Sharp at its headquarters office in Camas Washington.
Unless different specifications are established and agreed to in writing, the specifications for the Products are the written specifications issued by Sharp for the part number assigned by Sharp to the Products. Customer's part numbers are used for reference only. Sharp may, without affecting the obligations of Customer, make insignificant changes to the specifications of the Products from time to time.
Prices are shown on the face hereof. If Customer does not purchase the entire quantity upon which these prices were based, Customer will pay the higher price specified by Sharp for the quantity actually purchased. Prices do not include taxes and any tax Sharp may be required to collect or pay upon the sale, use or delivery of the Products will be paid by Customer upon invoice.
Unless otherwise set forth on the face hereof payment Sales Terms are net 30 days from date of invoice with interest on all unpaid amounts at the rate of 1.5% per month or the highest lawful rate, whichever is less. Sharp reserves a purchase money security interest in the Products delivered until all of Sharp's claims have been paid. Sharp may change these credit Sales Terms if Customer's financial condition changes. Each shipment shall be considered a separate and independent transaction.
Delivery will be f.o.b. Sharp's location and will occur when the Products are ready for pickup by the carrier. In the absence of specific instructions, Sharp will select a carrier. Sharp does not assume any liability for the shipment. Customer will be responsible for all transportation and insurance charges, including those associated with warranty repairs. Delivery dates set forth on the face hereof are estimates only. Sharp will use its best efforts to deliver in accordance with these dates but will not be responsible for failure to deliver as estimated.
Within 30 days after delivery Customer will inspect the Products and give written notice of rejection to Sharp detailing the manner in which any Products do not conform to the specifications. Upon receiving authorization and shipping instructions from Sharp, Customer may return rejected Products. If Customer retains the Products after their delivery without giving Sharp such notice within the designated period, Customer will be deemed to have irrevocably accepted the Products. Customer's inspection and acceptance tests shall not exceed the inspection and test procedures customary in the industry for the Products and shall be at Customer's expense. Sharp may charge to Customer any costs resulting from the testing, handling, and disposition of any Products returned by Customer which are not found by Sharp to be on-conforming.
Sharp warrants to Customer that the Products will be free from defects in material and workmanship under normal use and service for a period of one year from the date of invoice. Customer's exclusive remedy for breach of this warranty is that Sharp will either (i) repair or replace, at its option, any Product which fails during the warranty period because of such defect (if Customer promptly reported the failure to Sharp in writing) or, (ii) if Sharp is unable to repair or replace, Sharp will refund the purchase price of the Product upon its return to Sharp. This warranty does not apply to any Product which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction, or which has been serviced or repaired by anyone other than Sharp. The warranties set forth herein are in lieu of, and exclusive of, all other warranties, express or implied. ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED.
- PATENTS AND COPYRIGHTS
If notified promptly in writing of any action (and all prior related claims) brought against Customer alleging that Customer's use of the Products infringes a United States patent or copyright, Sharp will defend that action at its expense and will pay the costs and damages awarded against Customer in the action, provided that Sharp shall have sole control of the defense and all negotiations for settlement or compromise. If a final injunction is obtained in such action against Customer's use of the Products or if in Sharp's opinion the Products are likely to become the subject of a claim of infringement, Sharp will at its option and expense either procure for Customer the right to continue using the Products, replace or modify the Products so that they become non-infringing or grant Customer a credit for the infringing Products and accept their return. Sharp will not have any liability to Customer if the alleged infringement is based upon use or sale of the Products in combination with other products or devices which are not made by Sharp or use of the Products for other than their intended purpose. Customer will defend and hold Sharp harmless against any expense, judgement or loss for alleged infringement of any patents, copyrights or trademarks which result from compliance with Customer's designs, specifications or instructions. No costs or expenses shall be incurred for the account of Sharp without its prior written consent. Sharp's total liability to Customer as a result of compliance with this provision will not exceed the sum paid to Sharp by Customer for the allegedly infringing Products. The foregoing states the entire liability of Sharp for alleged infringement of patents and copyrights by the Products, any part of them or by their operation.
- CANCELLATION AND RESCHEDULING
Customer may by written notice to Sharp cancel or reschedule any shipment of Products that is scheduled for delivery at least 90 days (unless a different time period is specified on the face hereof) from the time Sharp receives Customer's notice. All quantities must be released and shipments scheduled no more than 12 months from the date hereof. Sharp may cancel this order or any portion in the event of Customer's default or a material adverse change in Customer's financial condition without affecting Sharp's right and remedies. Except as otherwise provided herein orders accepted by Sharp are firm and non-cancellable.
Sharp shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Sharp's reasonable control. Examples of such causes are acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Sharp may defer delivery for a period equal to the delay caused by such contingency in the event of shortages for any reason whatsoever. Sharp may allocate production among its customers.
- LIMITATION OF LIABILITY
Liability of Sharp to Customer, if any, under this contract for breach of contract or warranty, negligence or otherwise shall in no event exceed the total contract price specified herein less the purchase price of any items delivered and accepted hereunder. In no event shall Sharp be liable to Customer or others for special, incidental or consequential damages for breach of any of the provisions of this contract, including without limitation, provisions regarding warranties, guaranties, indemnities, and patent infringement, or based upon any claims, demands, settlements, or lawsuits arising from or in connection with, the Products sold hereunder, such damages including, but not limited to, costs of removal and reinstallation of items, loss of good will, loss of profits, or loss of use. Customer assumes all liability for any and all damages arising from or in connection with, the use or misuse of the Products by Customer, its employees, or others.
This is the complete and exclusive statement of the agreement between the parties and supersedes all prior agreements and communications about the subject matter. Neither this agreement nor individual transactions under it may be assigned by Customer without the prior written consent of Sharp. Regardless of any disclosure made by Customer to Sharp of an ultimate destination of the Products, Customer will not export, directly or indirectly, any Product without first obtaining all required licenses from the appropriate government agencies. This agreement and all transactions under it shall be governed by the laws of New York.